In a Failed Romance, Can You Sue for Negligence?

by familyllb on February 26, 2015

In a Failed Romance, Can You Sue for Negligence?

In a case called Danovic v. Wagner, the Ontario court recently had to consider a rather novel argument: that one person in a failed romantic relationship might be “negligent” toward the other for their treatment (or mis-treatment, as the case may be), and therefore liable in damages.

As bad internet dates go, the facts of the case were quite noteworthy: The man, a university professor in his late 50s, had met the woman, who was unemployed and in her late 40s, on an internet dating site. They started communicating by email and phone; they met in person only four times over a 2- to 3-week period, and engaged in consensual sex each time. Despite the fact that the man made it clear he wanted a casual, non-committed, non-exclusive relationship, the woman was obviously expecting something more permanent and monogamous between them. Things became acrimonious, and when inevitably the man tried to break it off completely, the woman falsely claimed she was pregnant, embarked on a campaign of both direct and anonymous harassment and intimidation, and contacted the man’s girlfriend, relatives, friends, and employer with various complaints and allegations about him.

Ultimately, the woman (who had no lawyer and represented herself) sued the man in court for $100,000 in damages; among her various assertions was that he “lied and cheat on [her] to get someone for ‘his bedroom’”. She asked the court to “punish [the man] for his inhuman deeds” in order to teach him a lesson on “how to behave himself in the future.”

After trying to discern the legal basis for the claim, and after patiently examining the relevant correspondence between them along with other evidence, the court assessed the parties’ respective positions. In short, the court found that the woman’s many claims were ill-founded or lacked a legal basis.

However, it focused in particular on what appeared to be a claim for damages arising from the man’s alleged negligence in connection with their failed relationship. In considering what the court called this “apparently novel” claim, it ruled that the tort of negligence simply could not be extended to failed romantic relationships. Policy considerations precluded the court from finding the required duty of care between relationship partners, and legislatures have pointedly moved away from encouraging inquiries or finger-pointing on the issue of who may have been responsible for any relationship failure, with one key example being changes that established no-fault divorce laws in Canada. As the court put it:

In my view, having regard to such developments, the tort of negligence cannot be extended to failed intimate relationships, in the manner effectively suggested by the plaintiff, without significantly undermining such very deliberate and overt statements of modern legislative policy. … It is hard to imagine anything more counter-productive … than a tort deliberately aimed at providing former lovers, spouses and other intimate partners with a litigious forum in which to publicly air their emotional grievances; e.g., with a view to obtaining some kind of moral condemnation and vindication.

Nor does it seem likely that there would be any shortage of those interested in embracing such a litigious weapon, (bearing in mind that there would seem to be no logical reason for restricting its availability to those engaged in a short 2-3 week relationship, involving just four meetings in person).

Failed intimate relationships, with resulting emotional distress and suggestions of perceived reprehensible conduct leading to such failures, unfortunately have been with us from time immemorial.

Moreover, as Congreve noted more than three centuries ago, love may bring out the best in humanity, but its failure sadly also tends to bring out the worst. Had he been writing in more enlightened and gender-neutral times, his famous lines from The Mourning Bride no doubt would have been recast as an observation that “Heaven has no rage like love to hatred turned, Nor Hell a fury like a lover scorned”.

This case provides another lamentable example of that age-old phenomenon, playing itself out yet again.

This case demonstrates that no good and much harm would flow from recognizing a tort of negligence, expanded so as to apply to intimate relationships.

The man was successful in his motion to declare that the action was frivolous, vexatious or an abuse of process, and that it disclosed no reasonable cause of action against him. He also succeeded in establishing that it had been brought for the main (and improper) purpose of harassing him. The court said:

In short, everything before me indicates this litigation is simply the latest tool employed by the plaintiff in an effort to secure her principal goals of exacting vengeance and exerting coercion by destroying the defendant’s life, and making him miserable, because the parties’ 2-3 week relationship did not proceed or progress in the manner desired by the plaintiff, and because the defendant wants nothing more to do with her.

She openly threatened to use litigation in that deliberately abusive way, and she now has made good on that additional threat.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

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About FamilyLLB

FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.